Jan 22, 2018

199. Did unmasking reform clinch the deal for 702 reauthorization?

In this guestless episode 199 of the Cyberlaw Podcast, Michael Vatis, Markham Erickson, and Nick Weaver join me to explore the intense jockeying that led to passage of S. 139 and gave section 702 of FISA a new lease on life. The administration team responsible for shepherding the bill did well, weathering the President’s tweets, providing a warrant process for backend searches that will likely be used once a year if that, and -- almost without anyone noticing -- pulling the unmasking reform provisions from the bill and substituting an ODNI rule. Why? My guess is that dropping unmasking from the bill was a bargaining chip that made it easier for Dems to vote yea; if so, it worked.

And just in time, as the days after passage brought new whiffs of scandal, from the four-page House Republican memo alleging improprieties in the FBI’s application for a FISA wiretap on a Trump campaign hanger-on to two cases in which the FBI and NSA destroyed evidence they were supposed to be preserving. Michael Vatis and I cross sword over whether the FISA abuse memo is worth taking seriously or just partisan flak.

Nick and I delve into the gigabytes of hacked data mislaid by another player in the phone hacking game – Lebanese intelligence. Nick wonders if the data was obtained by EFF or Lookout violating the Computer Fraud and Abuse Act. I suspect it may have been, but that EFF ain't talking because it doesn't want to legitimize such hacking for those whose motives aren't Certified Pure by Civil Society (TM).

The first known death by SWAT-ing has yielded charges; the egregious SWAT-er for hire, SWauTistic, has been charged with involuntary manslaughter. Hard to argue with that.

The Microsoft Ireland case will be argued next month, and there are dozens of amici briefs, including one by our own Michael Vatis, who lays out his direct appeal to Justice Gorsuch’s property-based view of the fourth amendment.

Matt Green (and Nick Weaver) have some questions for Apple about moving its China iCloud data to a third party Chinese cloud provider. I’ve got one too. If treating Taiwan as a separate country from China leads to humiliating penalties for Western companies, and it does, has China prohibited Apple from storing Taiwanese and Hong Kong user data outside China?

And, for once on the podcast: a sweet life-long love story, spelled out cryptographically.

As always The Cyberlaw Podcast is open to feedback. Send your questions, suggestions for interview candidates or topics to CyberlawPodcast@steptoe.com or leave a message at +1 202 862 5785.